What Could Happen?

Since I’ve been fielding a number of questions over the past week from friends, family, and others, about what’s going on in Bellefonte vis a vie the Centre County District Attorney, I wanted to gather my thoughts in one place to where I can point people.

My office is next to the Courthouse. That doesn’t make me an expert. But I do have extensive experience in Pennsylvania criminal law, so let’s delve into the potential charges.

CAVEAT: None of this is legal advice. A lot of it is pure speculation, or speculative extrapolation. All of it is based on publicly-available information.

As of now, there are at least three concurrent investigations happening. The Centre County Commissioners, the Bellefonte Police Department, and the Office of the Attorney General (“OAG”) are all conducting their own investigations into allegations of wrongdoing by the elected District Attorney, Stacy Parks Miller. The County investigation is being conducted by attorneys from the law firm of Abom and Kutulakis, LLP. They have been retained by the County to advise the Commissioners on what, if any, steps they can, should, and/or must take. The Bellefonte Police Department have begun their own investigation, but I am led to believe that will be ended and handed over to the OAG. Finally, the OAG are looking into these allegations. They will likely take what evidence has been obtained by the Bellefonte PD and review it before proceeding further.

A simultaneous investigation is being conducted by the Attorney Disciplinary Board. This agency of the PA Supreme Court regulates attorney licensing in the Commonwealth. They are looking into the ethical implications of the alleged misconduct. (This topic needs its own article and I don’t have time to write it myself just yet.)

What is the District Attorney accused of doing?

Forgery Allegations

Centre County District Attorney Stacy Parks Miller is alleged to have signed Judge Pamela A. Ruest’s signature to a bail modification order (PDF). This order was intended to create a paper trail making it appear as though an inmate at the Centre County Correctional Facility had his bail reduced, posted bail, and had been released.

Law enforcement has a lot of leeway in investigating criminal activity. When the crime in question is soliciting a murder-for-hire, with an Assistant District Attorney as the potential target, rules are likely to be bent. In any investigation, the police are allowed to lie to suspects, witnesses, and just about everyone else. They are not allowed to lie under oath, but they can trick people into confessing. They can also produce fake documents. That may be what was intended to happen here.
It should be noted that Judge Ruest denies having signed the bail order. Parks Miller’s claim to the contrary that she has several witnesses who saw Judge Ruest sign it notwithstanding, this document appears to bear a signature that was not put there by Judge Ruest.1
Where the scheme went off the rails is when this bail order was filed with the Prothonotary.2 The Prothonotary maintains the public record. The record is to be held as sacrosanct. You do not mess with the public record.

(1) knowingly makes a false entry in, or false alteration of, any record, document or thing belonging to, or received or kept by, the government for information or record, or required by law to be kept by others for information of the government;
(2) makes, presents or uses any record, document or thing knowing it to be false, and with intent that it be taken as a genuine part of information or records referred to in paragraph (1) of this subsection; or
(3) intentionally and unlawfully destroys, conceals, removes or otherwise impairs the verity or availability of any such record, document or thing.

(b) Grading. — An offense under this section is a misdemeanor of the second degree unless the intent of the actor is to defraud or injure anyone, in which case the offense is a felony of the third degree.

Subsection (a)(1) is the most relevant offense related here. Unlike Forgery, 18 Pa.C.S. §4101, et seq., it does not require intent to defraud or deceive. It only requires the offender to act with knowledge that the entry into the record or modification being made is false. Subsection (a)(2) may be applicable, but it isn’t necessary once you have a conviction under subsection (a)(1). Subsection (a)(2) is also defensible based on the lack of evidence that this document was ever presented to anyone. It appears to have been filed to provide verification if anyone decided to look into whether the informant actually was released on bail. Subsection (a)(3) is inapplicable to the facts as well.

As to grading of the offense, it would be a Misdemeanor of the Second Degree. Again, there is no evidence of an intent to defraud or injure anyone, so this should not be charged as a Felony.

Consequences?

As this is alleged to have occurred on or about September 9, 2013, the applicable Pennsylvania Sentencing Guidelines are the Seventh Edition. An offender convicted of Tampering with Public Records, graded as a misdemeanor of the second degree, has an Offense Gravity Score (OGS) of 2. With a presumed Prior Record Score (PRS) of zero, such an offender would be subject to a recommended standard range sentence of Probation (up to two years).

Like I said, you don’t mess with the public record.

Election and Civil Service Law Violations

The investigation has apparently ventured into whether Parks Miller had her office staff work on her 2013 re-election campaign.

This is a bright-line rule, and is just about the simplest rule we have in Election Law. Government employees cannot work on political campaigns while also being compensated for their government jobs. Additionally, they cannot use government resources for campaign work.

There are legal ways to work on a campaign as a government employee. It has to be done off the clock, after hours or otherwise, and it has to be done without consuming any government resources. This includes computers, cell phones, landline phones, paper, pens, even electricity. Even the candidate cannot use their government office to make campaign calls or send emails. Big bright line.

If the allegations are true, Parks Miller may face charges related to soliciting her government employees to violate civil service and election laws. The employees themselves may also face charges. These are notoriously difficult cases to prosecute and win a conviction. That being said, it was just this sort of charge that saw the Sisters Orie – Jane, Janine, and Joan – brought low.

Theft of Services

A far more likely – and provable – charge is Theft of Services. Based on the Search Warrant (pdf) issued to the Bellefonte Police Department this past weekend, one of the charges being investigated is Theft of Services.

18 Pa.C.S. §3926(b). Theft of Services.

(b) Diversion of services. — A person is guilty of theft if, having control over the disposition of services of others to which he is not entitled, he knowingly diverts such services to his own benefit or to the benefit of another not entitled thereto.(c) Grading.

(1) An offense under this section constitutes a summary offense when the value of the services obtained or diverted is less than $ 50.
(2) When the value of the services obtained or diverted is $ 50 or more, the grading of the offense shall be as established in section 3903 (relating to grading of theft offenses).
(3) Amounts involved in theft of services committed pursuant to one scheme or course of conduct, whether from the same person or several persons, may be aggregated in determining the grade of the offense.

…

(h) Definitions. — As used in this section, the following words and phrases shall have the meanings given to them in this subsection:“Service.” –Includes, but is not limited to, labor, professional service, transportation service, the supplying of hotel accommodations, restaurant services, entertainment, cable television service, the supplying of equipment for use and the supplying of commodities of a public utility nature such as gas, electricity, steam and water, and telephone or telecommunication service. The term “unauthorized” means that payment of full compensation for service has been avoided, or has been sought to be avoided, without the consent of the supplier of the service.

To cut off the argument before it is made: theft of services does not just mean utilities like electricity or cable tv. As defined in the statute under subsection (h), “Service” can mean labor and professional service. Parks Miller is alleged to have had County employees, at the very least, Notarize her campaign documents. This, of course, could have easily been done after the workday ended at 5:00 PM, or before it started at 8:30 AM. (There is nothing inherently wrong with employees of an elected official helping out with in-kind service like this, as long as proper records are kept to reflect the value of the services rendered as contributions to the campaign. There are other regulations that apply as well, but they are not germaine to this discusion.)

Consequences, Part II

If convicted of Theft of Services of this nature, the grading is determined by the amount of value diverted. This will be a fact-specific inquiry, and will require investigators and prosecutors to determine the amount of time worked on campaign functions during the County workday and the pay grade of the employees doing the work. Grading of theft offenses, and Standard Range Sentences for each, are as follows:

Amount

Grading

OGS / Sentence

≤ $50

Summary

1 / RS (Probation)

> $50 but ≤ $200

Misdemeanor 2

2 / RS (Probation)

> $200 but ≤ $2,000

Misdemeanor 1

3 / RS - 1 Month

> $2,000 but ≤ $25,000
> $25,000 but ≤ $50,000

Felony 3

5 / RS - 9 months
6 / 3 months - 12 months

> $50,000 but ≤ $100,000
> $100,000 but ≤ $500,000

Felony 2

7 / 6 months - 14 months
8 / 9 months - 16 months

> $500,000

Felony 1

8 / 9 months - 16 months

As you can see, it would take more than $2,000 worth of services to make this a felony offense. Potential penalties range from a fine at the Summary level up to 16 months incarceration at the Felony 1 level.

What is going to happen?

Honestly, no one knows. Investigators may conclude there was no wrongdoing at all, or that there is not enough evidence to file charges in the first place. I have no idea, not really. But now I have a place to point people when they ask me “what could happen?”

1I am quite familiar with Judge Ruest’s signature. I was her law clerk from 2008 to 2010. I do not claim to be an expert, but it does not look like Judge Ruest’s signature to me. I have no opinion or view on whether Parks Miller or someone else signed it. I just don’t believe Judge Ruest signed it.↑

2A “prothonotary” is the keeper of the records of a court in Pennsylvania. We have odd words for a number of things in Pennsylvania. For instance, in most of the United States, you reach the state’s highest court by requesting a Writ of Certiorari (Latin; present passive infinitive, “to be informed, appraised, or shown”). In Pennsylvania, we seek Allocatur (Latin; 3d person singular present indicative passive of allocare, “it is allowed”). It is functionally equivalent to Certiorari. (Technically, in Pennsylvania it is called a Petition for Allowance of Appeal, but we still say Allocatur informally.)↑

3 Replies to “What Could Happen?”

Actually a very good explanation. Having followed the last several DA races in Centre County, I am hard pressed to to find any campaigning that Parks Miller did. The notary fees are fixed with a maximum fee of $5.00 per signatures. It would be difficult to have spent more than $50.00 on that.

It would not be difficult at all though for much more than $50 to be racked up with having someone in the office spending just a couple hours researching something, writing up some e-mails, updating social media or making phone calls. In the months this has been ‘investigated’ it should be pretty easy by this point to determine if that number or others have been exceeded or not. Since it has not been determined, and there is no substantial information put out regarding this investigation it leads to a loss of credibility for the agencies who are claiming to be investigating. The same goes for the forgery, there has been ample time to determine if the signature in question is a forgery or not, but nothing has been made public regarding it either. The people deserve answers on these cases.
Also it seems to have fallen into the background, but it was also the DA’s office that Judge Lunsford was in trouble for inappropriate communication during court with. The DA was involved in those communications as well.